Redding v. Redding — 39 N.Y. St. Rep. 800

Majority

p. 800

Moses W. Redding, Resp’t, v. Abbey Louise Redding, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Divorce—Setting aside decree—Condonation.

Plaintiff obtained an absolute divorce from defendant in July, 1886. The parties had previously separated, and defendant had returned to Vermont to live with her parents, who lived on a farm belonging to plaintiff. On an application made in 1888 to set aside the decree on the ground of subsequent condonation and cohabitation, the affidavits were conflicting, but it appeared that defendant had written letters at different times between June, 1886, and July, 1887, showing knowledge of the decree and asking plaintiff to take her back, and it also appeared that plaintiff necessarily staid at the farm in Vermont when there. Held, that the evidence was insufficient to justify setting aside the decree.

Appeal from order of special term, denying motion to set aside a decree of divorce formerly rendered in favor of plaintiff.

Geo. C. Brainerd (Thos. J. Ritch, Jr., of counsel), for app’lt; B. W. Downing ( W. T. B. Milliken, of counsel), for resp’t.

—The parties were married in Vermont in 1878. Subsequently they moved to Brooklyn and continued to live together there as man and wife until February, 1886, when the parties separated and the wife went back to Vermont to her parents. They lived on the husband’s farm in Highgate, Vermont. The parties had no children. On the 26th of May, 1886, the plaintiff commenced an action against his wife to procure an absolute divorce. The - summons was personally served on the defendant on the 27th of May, 1886, at 207 West Forty-fifth street, N. Y. The defendant‘did not appear in the action, and the action was referred to take proof of the acts of adultery charged against the defendant The proof was full and complete, and on the 7th of July, 1886, the court granted a decree for an absolute divorce to the plaintiff. On the 1st of June, 1888, the defendant made a motion to set aside the decree. She alleges in support of her motion that the • plaintiff after the service of the papers in the divorce action stated that the papers had been served against his orders; that they were of no importance, and that he would proceed no further. That the parties continued to live together as man and wife in Vermont until November, 1886, when the plaintiff returned to New York, and that the parties cohabited together in New York as late as March, 1887.

The case presents great contradiction between the parties and those who support them by affidavits. The letters of the defendant offered abundant proof that she knew of the decree immediately on its being made. In August, 1886, she wrote: “ to him who was once ” my husband. The communication is in verse and directly mentions the decree which freed him from -her. Other letters to the husband were sent; one in June, 1886, asking him to take her back and others addressed to the same end; one as late as July, 1887. The plaintiff moved again in June, 1888, and in one of the letters the defendant alluded to her husband as contracted to another. The facts now alleged by defendant cannot

p. 801

be made to agree with these letters and there is nothing in the admitted facts as to condonation which conflicts with the plaintiff's assertions. He supported the defendant until after the divorce. He owned the farm at Highgate and necessarily staid there. Assuming the divorce to- have been obtained without fraud all con-donation based upon subsequent cohabitation fails as no such cohabitation existed; but I think from the letters that the separation was absolute from February, 1886, to the present time.

The order should, therefore, be affirmed, with costs and disbursements.

Dykman, J., concurs; Pratt, J., not sitting.